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Thursday, June 28, 2012

Don’t call it a mandate — it’s a tax

Salvaging the idea that Congress did have the power to try to
expand health care to virtually all Americans, the Supreme Court on
Monday upheld the constitutionality of the crucial – and most
controversial — feature of the Affordable Care Act. By a vote of 5-4,
however, the Court did not sustain it as a command for Americans to buy
insurance, but as a tax if they don’t. That is the way Chief Justice
John G. Roberts, Jr., was willing to vote for it, and his view
prevailed. The other Justices split 4-4, with four wanting to uphold it
as a mandate, and four opposed to it in any form.
Since President Obama signed the new law, it has been understood by
almost everyone that the expansion of health care coverage to tens of
millions of Americans without it could work — economically — only if the
health insurance companies were guaranteed a large pool of customers.
The mandate to buy health insurance by 2014 was the method Congress
chose to supply that pool. It is not immediately clear whether the
Court’s approach will produce as large a pool of new customers. The
ACA’s key provision now amounts to an invitation to buy insurance,
rather than an order to do so, with a not-very-big tax penalty for going
without.
The decision to keep at least some foundation under the expanded
coverage will lead almost certainly to renewed efforts by Republicans in
Congress to repeal all or most of the new law. And, of course, the
Court’s decision is guaranteed to become a very prominent fixture of
debate in this year’s continuing presidential and congressional
elections.